Spousal Chats: Privacy Versus Fairer Evidence

Covertly collected evidence in divorce cases may raise questions on the right to privacy. But shutting out such materials may forestall a full-fledged judicial probe

- KALEESWARAM RAJ

Truth is the complex, indispensable foundation in individual litigations, including matrimonial disputes. Yet, it is not easy to unravel the realities involved in a case. British scholar Terry Eagleton said, "Courtrooms, like novels, blur the distinction between fact and fiction... The jury judge not on the facts, but between rival versions of them." However, what is presented to the court by way of evidence matters, for knowing the truth.

Recently, the Supreme Court, in a judgment authored by Justice B V Nagarathna, held that even secretly recorded telephonic communications of a spouse are admissible in evidence in a matrimonial dispute. The court held that such conversations cannot claim immunity from judicial scanning on privacy grounds. The court emphasized a litigant's right to a fair trial, which is a facet of Article 21, while negating the privacy arguments, also based on Article 21.

The case has a curious trajectory. The husband filed a divorce petition with allegations of cruelty in the family court in Bathinda, Punjab. Among other materials, the husband placed memory cards/chips of mobile phones, compact discs, and conversation transcripts as evidence before the court. He claimed that he had recorded certain conversations between the wife and the husband between 2010 and 2016, which were contained in these materials, and he sought their admission as evidence. The family court accepted the request. Aggrieved by this, the wife moved the Punjab and Haryana High Court, which allowed the petition and set aside the family court order. The husband challenged the High Court order before the Supreme Court.